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The NYT highly educated reporters forgotten that Americans are born in
U.S. military hospitals in Germany, Japan, Korea, Panama, Italy, UK,
etc.....
Constitution of the United States, Analysis and Interpretation: 2002
Edition is at
http://www.gpoaccess.gov/constitution/browse2002.html#2004
2006 Supplement is at
http://www.gpoaccess.gov/constitution/browse2002.html#06supp
http://frwebgate1.access.gpo.gov/cgi-bin/waisgate.cgi?WAISdocID=311761428052+2+0+0&WAISaction=retrieve
[[Page 434]]
QUALIFICATIONS
All Presidents since and including Martin Van Buren were born in the
United States subsequent to the Declaration of Independence. The only
issue with regard to the qualifications set out in this clause, which
appears to be susceptible of argument, is whether a child born abroad
of American parents is ``a natural born citizen'' in the sense of the
clause. Such a child is a citizen as a consequence of statute.\94\
Whatever the term ``natural born'' means, it no doubt does not include
a person who is ``naturalized.'' Thus, the answer to the question
might be seen to turn on the interpretation of the first sentence of
the first section of the Fourteenth Amendment, providing that ``[a]ll
persons born or naturalized in the United States'' are citizens.\95\
Significantly, however, Congress, in which a number of Framers sat,
provided in the Naturalization act of 1790 that ``the children of
citizens of the United States, that may be born beyond the sea, . . .
shall be considered as natural born citizens. . . .''\96\ This
phrasing followed the literal terms of British statutes, beginning in
1350, under which persons born abroad, whose parents were both British
subjects, would enjoy the same rights of inheritance as those born in
England; beginning with laws in 1709 and 1731, these statutes
expressly provided that such persons were natural-born subjects of the
crown.\97\ There is reason to believe, therefore, that the phrase
includes persons who become citizens at birth by statute because of
their status in being born abroad of American citizens.\98\ Whether
the Supreme Court would decide the issue should it ever arise in a
``case or controversy'' as well as how it might decide it can only be
speculated about.
\94\8 U.S.C. Sec. 1401.
\95\Reliance on the provision of an Amendment adopted subsequent to
the constitutional provision being interpreted is not precluded by but
is strongly militated against by the language in Freytag v. CIR, 501
U.S. 868, 886-887 (1991), in which the Court declined to be bound by
the language of the 25th Amendment in determining the meaning of
``Heads of Departments'' in the appointments clause. See also id., 917
(Justice Scalia concurring). If the Fourteenth Amendment is relevant
and the language is exclusive, that is, if it describes the only means
by which persons can become citizens, then, anyone born outside the
United States would have to be considered naturalized in order to be a
citizen, and a child born abroad of American parents is to be
considered ``naturalized'' by being statutorily made a citizen at
birth. Although dictum in certain cases supports this exclusive
interpretation of the Fourteenth Amendment, United States v. Wong Kim
Ark, 169 U.S. 649, 702-703 (1898); cf. Montana v. Kennedy, 366 U.S.
308, 312 (1961), the most recent case in its holding and language
rejects it. Rogers v. Bellei, 401 U.S. 815 (1971).
\96\Act of March 26, 1790, 1 Stat. 103, 104 (emphasis supplied). See
Weedin v. Chin Bow, 274 U.S. 657, 661-666 (1927); United States v.
Wong Kim Ark, 169 U.S. 649, 672-675 (1898). With minor variations,
this language remained law in subsequent reenactments until an 1802
Act, which omitted the italicized words for reasons not discernable.
See Act
of Feb. 10, 1855, 10 Stat. 604 (enacting same provision, for offspring
of American-citizen fathers, but omitting the italicized phrase).
\97\25 Edw. 3, Stat. 2 (1350); 7 Anne, ch. 5, Sec. 3 (1709); 4 Geo. 2,
ch. 21 (1731).
\98\See, e.g., Gordon, Who Can Be President of the United States: The
Unresolved Enigma, 28 Md. L. Rev. 1 (1968).
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